A better legal argument against Trump's tariffs

 A recent Wall Street Journal editorial teed up an interesting legal argument against President Donald Trump’s tariffs on Canada, Mexico, and China. The editorial stressed the absence of specific language in the International Emergency Economic Powers Act of 1977 (IEEPA) for the president to impose tariffs. IEEPA authorizes the president to “block” or “regulate” imports (along with several other actions), but it does not say, in so many words, that the president can put a tariff on imports.

The Journal editorial argued that the Major Questions Doctrine (MDQ) forbids the president to impose tariffs when he invokes IEEPA. MDQ is a legal axe honed by the Supreme Court in West Virginia v. Environmental Protection Agency (2022) to strike down regulations with broad economic and political significance that are not based on “clear Congressional authority.” But in relying on the MDQ to say that IEEPA does not authorize tariffs, the Journal argument faces two obstacles. First, as a matter of economic logic, the power to block or regulate imports encompasses the power to put a tariff on imports. Second, as a matter of legal language, Article I, Section 8 of the US Constitution gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The word “tariff” does not appear in Section 8, yet Congress has enacted dozens of tariff acts over the centuries as a means of regulating commerce with foreign nations. If Congress itself can regulate commerce with tariffs, it can certainly delegate to the president the power to impose tariffs by using the word “regulate.”

A better legal argument against Trump’s tariffs, also featured in the Journal editorial, contends that Trump’s use of IEEPA swallows up the entirety of powers conferred on Congress by Article I, Section 8. Under the Non-Delegation Doctrine laid down by the Supreme Court in J.W. Hampton, Jr. & Co. v. United States (1928), Congress must assert an “intelligible principle” for executive action when it delegates its powers to the president. Under IEEPA, the purported “intelligible principle” for the declaration of a “national emergency” that enables the regulation of imports (and other actions) is a threat “to the national security, foreign policy, or economy of the United States” originating “in whole or substantial part outside the United States.”

This may sound like an “intelligible principle.” Indeed it is, when a national emergency is declared for the imposition of IEEPA sanctions, as in the cases against Iran (2006), Russia (2014), and China (2019). But is there really an “intelligible principle” when the US fentanyl crisis is cited as the threat that justifies tariffs against Canada? Fentanyl produced in Mexico, and precursors produced in China, may be a substantial part of the crisis but not fentanyl exported from Canada.

Looking to the future, foreign sources can be detected for many crises that may afflict the United States—drought and hurricanes attributed to climate change, financial turmoil connected to foreign capital markets, epidemics originating abroad. Added to these genuine calamities, at least as characterized by Trump, are persistent US trade deficits with bilateral partners, and the fact that other countries impose higher tariffs on particular products than US rates, even though both are long-standing features of the economic order. Will the Supreme Court let Trump, or his successors, invoke any crisis or economic feature as justification for the declaration of a “national emergency,” and thus IEEPA sanctions, against countries disfavored by the White House?

More than 50 national emergencies have been declared since IEEPA was enacted—many occasioned by events in small, weak, and distant countries—but in no case have US courts questioned whether a genuine “national emergency” exists, or the connection between the measures imposed and the emergency declared. To be sure, no bright line separates genuine national emergencies from doubtful claims, and opinions can differ on appropriate remedies. But does it make sense to consign such decisions entirely to the president with no congressional say?

Under the National Emergencies Act of 1976, Congress can only terminate a declaration of national emergency by a joint congressional resolution that overcomes a presidential veto. To date, that has never happened. And to date, US courts have simply accepted presidential declarations as the final word and measures imposed as the appropriate response. By this combination of statutory drafting and judicial neglect, the essence of the Non-Delegation Doctrine, the requirement of an “intelligible principle” to guide executive action, has simply vanished.

This state of affairs means that, by declaring a national emergency having no connection with Canada, Trump can assert executive control over all the powers enumerated in Article I, Section 8. The same holds for other tariff actions contemplated by Trump if he invokes IEEPA. What role does that leave for Congress? None. The time has come for the Supreme Court to take a fresh look at this constitutional travesty.